Social Media Background Checks : Off-Duty Conduct Laws :: Oil : Water

One report suggests that as many as 91% of employers use
social networking sites to screen potential employees, with as many as 69% of
employers rejecting a candidate because of information discovered on a social
site. I've written before about some of the risks employers face
when conducting background checks on employees via Facebook or other social
media sites. Here's one more risk for you to consider: off-duty conduct laws.

29 states have laws that prohibit employers from taking
an adverse action against an employee based on their lawful off-duty activities:

8
states have statutes that protect the use of any lawful product (e.g.,
tobacco or alcohol) outside of the workplace. (Illinois, Minnesota,
Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin)

4
states have statues that protect employees who engage in any lawful
activity outside of work. (California, Colorado, New York, and North
Dakota)

What do these laws mean for employers' online background
searches? Businesses need to understand that reviewing Google or Facebook
before making a hiring or firing decision is a risky proposition, which could
reveal myriad lawful off-duty activities that could implicate one of these
statutes (in addition to all sorts of protected EEO data).

My suggestion for a best practice? Either to hire a third
party to do your searches for you, or to train an employee, insulated from the
hiring process, to do them. In either case, the screener should scrub all
protected information before providing any report to the the person responsible
for making the hiring (or firing) decision.

Notice that Ohio is missing from the list of states with
off-duty conduct laws. However, if you have operations in one of the 29 states
that have do have these laws, you will want to pay close attention to this
issue.